955 F.

2d 42

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Sylvester AKINKOUTU, a/k/a Henry Babalola, DefendantAppellant.
No. 90-5662.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 6, 1991.
Decided Feb. 20, 1992.

Appeal from the United States District Court for the District of Maryland,
at Baltimore. Herbert N. Maletz, Senior District Judge. (CR-89-457-JFM)
Argued: Michael Joseph Gentile, Whiteford, Taylor & Preston, Towson,
Md., for appellant; Jane F. Barrett, Assistant United States Attorney,
Baltimore, Md., for appellee.
On Brief: Richard D. Bennett, United States Attorney, Carmina S.
Hughes, Assistant United States Attorney, Ira L. Oring, Assistant United
States Attorney, Baltimore, Md., for appellee.
D.Md.
AFFIRMED.
Before K.K. HALL, WILKINS and NIEMEYER, Circuit Judges.
OPINION
PER CURIAM:

Sylvester Akinkoutu was convicted of possessing five or more false

identification documents with the intent to use or transfer them unlawfully, 18
U.S.C.A. 1028(a)(3) (West Supp.1991), and reentering the United States after
deportation, 8 U.S.C.A. 1326 (West Supp.1991). He appeals his conviction,
arguing that the district court denied his Sixth Amendment right to counsel of
his choosing, U.S. Const. amend. VI. We affirm.

I.
2

Following Akinkoutu's arrest in early December 1989, attorney Roland Walker

entered an appearance on Akinkoutu's behalf and moved for a Continuance of
Arraignment and Reconsideration of Release Pending Trial. On December 20,
1989, attorney Mark Van Bavel, Walker's law partner, represented Akinkoutu
at his detention hearing. Approximately one week later, Van Bavel signed and
filed a Motion to Suppress Evidence on Akinkoutu's behalf.

Just prior to the beginning of his trial, on the morning of January 29, 1990,
Akinkoutu appeared with Van Bavel and sought permission to address the
district court. Akinkoutu stated that he had retained Walker to represent him
during the trial and that Walker was not present. He informed the court that
although Van Bavel was present and prepared to defend him, he wanted Walker
to represent him. In response to questioning from the court, Van Bavel stated
that he had been meeting with and representing Akinkoutu since the indictment
was returned and had prepared for trial. Akinkoutu confirmed that this was
correct but asserted that he had retained Walker to try the case. Van Bavel then
informed the court that Walker had had extremely limited involvement in the
case, having accompanied Van Bavel only on one occasion to a meeting with
Akinkoutu. Additionally, Van Bavel stated that he believed that Akinkoutu had
become increasingly dissatisfied with his representation because he had been
unable to negotiate a plea agreement that guaranteed Akinkoutu a suspended
sentence. The court inquired of Van Bavel whether this was the sole basis for
the difficulty, and Van Bavel expressed his opinion that it was. Akinkoutu then
emphasized that he believed that Walker could represent him better than Van
Bavel. Construing the exchange as a motion to substitute counsel, and noting
that the motion was made just prior to jury selection, the court denied the
motion. Akinkoutu proceeded to trial with Van Bavel representing him and was
convicted.

The district court conducted a sentencing hearing on April 30, 1990 at which
Van Bavel represented Akinkoutu. On appeal the Government agreed that
errors committed during Akinkoutu's sentencing required resentencing. This
court granted Akinkoutu's unopposed motion to vacate his sentence and remand

for resentencing, leaving Akinkoutu's challenge to his conviction as the only

remaining issue before the court. United States v. Akinkoutu, No. 90-5662 (4th
Cir. June 3, 1991).
II.
5

The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the
accused shall enjoy the right ... to have the Assistance of Counsel for his
defence." U.S. Const.amend.VI. This right encompasses, among others, the
"right to select and be represented by one's preferred attorney." Wheat v.
United States, 486 U.S. 153, 159 (1988). This right, however, is not without
limitations and is satisfied so long as the defendant is given a reasonable
opportunity to retain counsel of his choosing. See United States v. Gallop, 838
F.2d 105, 107-08 (4th Cir.), cert. denied, 487 U.S. 1211 (1988).

Akinkoutu argues that he was denied the right to counsel of his choosing by the
refusal of the district court to postpone his trial until he could secure Walker's
attendance. In reviewing the refusal of a trial court to permit the substitution of
counsel, we must consider: (1) the timeliness with which the motion was made;
(2) the adequacy of the inquiry by the district court into the defendant's
objection to proceeding with present counsel; and (3) whether the conflict
between attorney and client had become so acute that communication was
completely lacking. Id. at 108. We review the refusal of the district court to
grant a continuance to permit the substitution of counsel only for an abuse of
discretion. See id.

The record indicates that although Akinkoutu knew that Van Bavel had
represented him throughout the pretrial proceedings, he made no attempt to
bring the problem to the attention of the court until immediately before jury
selection. The court made a thorough inquiry of Van Bavel and Akinkoutu to
determine the source of the difficulty and its effect on the attorney-client
relationship. This inquiry disclosed that the sole source of Akinkoutu's
dissatisfaction with Van Bavel's representation was the attorney's inability to
negotiate a more favorable plea agreement. Additionally, although Akinkoutu
contends that the attorney-client relationship had, by the morning of trial,
degenerated to the point where communication was impossible, this argument is
significantly undermined by the fact that Akinkoutu chose to have Van Bavel
represent him at his sentencing hearing three months later. We cannot say, on
these facts, that the district court abused its discretion in refusing to continue
trial to permit a substitution of counsel or that Akinkoutu did not have a
reasonable opportunity to retain counsel of his choosing.

AFFIRMED.